Patent Law News + Insights

What’s the Difference Between a Patent, a Trademark, and a Copyright?

January 25, 2018

Last year, we published a post that discussed the difference between a patent and a trade secret.

Since then, we’ve been asked to take a deep dive into the differences between patents, trademarks, and copyrights — the other common types of intellectual property (IP) protection relevant to high-tech companies.

Depending on your business model and how you plan to commercialize your ideas, you may need to pursue different types of protection in order to protect your rights.

In this post, we’ll discuss when you should pursue patents, trademarks, or copyrights — and whether it’s worth seeking multiple forms of IP protection.

patent-definition

What is a patent?

Patents give you the right to exclude others from making, selling, using or importing a particular product or service, in exchange for full public disclosure of your invention.

What can we protect using a patent?

To obtain a patent, your invention must meet the legal requirements for patentability. In the United States, this is defined as:

  • Patent-eligible subject matter: A “process, machine, manufacture or composition of matter”
  • Novel: Different from all prior art
  • Useful: Functions as claimed to benefit the public
  • Non-obvious: More than a trivial variation of prior art

How do we obtain a patent?

In order to gain legally enforceable rights in the United States, you must submit a patent application through the USPTO — and the USPTO must approve your application.

You cannot be issued a U.S. patent if you don’t file a patent application through the USPTO, or if the USPTO doesn’t approve your application through its patent examination process.

How long is patent protection good for?

Patents are generally enforceable for up to 20 years, if you pay all associated maintenance fees. Patents cannot be extended beyond this 20-year period.

trademark-definition

What is a trademark?

Unlike patents, trademarks are not concerned with the functionality of a product. Instead, trademarks give you the right to prevent others from unfairly competing with you by using “confusingly similar” marks.

What can we protect using a trademark?

Trademarks are used to identify the source of a product or service, or to differentiate the source of the product or service from others. These identifying marks may include words, phrases, symbols, logos, or other devices.

In other words, trademarks can be used to protect a representation of:

  • The product or service itself
  • A feature of the product or service
  • The provider of the product or service

How do we obtain a trademark?

Trademark rights are fundamentally tied to use of the trademark in commerce. You can register a trademark with the USPTO (before or after you use the trademark) — but there is also no legal requirement to register.

If you don’t register, you can still have some degree of protection through common law trademark rights, such as:

  • Use of the ™ (TM) symbol for goods, and the ℠ (SM) symbol for services
  • Exclusive rights in the specific geographic territories where you’re actually using the goods or services
  • Injunctive relief against infringing parties (such as a cease-and-desist order)

But if you do register your trademark, you’ll gain an added degree of legal protection, such as:

  • Use of the ® symbol
  • Exclusive rights to use the mark on or in connection with the goods or services that you registered
  • A legal presumption of ownership nationwide
  • A public notice asserting your ownership of the mark
  • Financial compensation in the event of infringement (such as damages and attorney fees)

How long is trademark protection good for?

Registered trademarks are valid for an unlimited period of time, but a U.S. registration must be renewed every 10 years.

copyright-definition

What is a copyright?

The authors of copyrighted work have the exclusive right to reproduce, publish, perform, display, or record the creative work, and also to create derivative works from the original.

What can we protect using a copyright?

Generally speaking, copyrights protect original works of creative expression that have been fixed in a tangible medium. It’s important to emphasize that copyrights do not protect ideas — only the tangible form of the ideas.

While they’re usually used to protect artistic output, copyrights can also protect technical work product such as software and product manuals.

How do we obtain a copyright?

You automatically gain copyright protection when the work is fixed in tangible form, either directly or through the use of a machine (such as a computer or camera).

Consequently, copyright registration is optional but highly recommended, and is done with the U.S. Copyright Office. Registering your copyright gives you added legal benefits, like the ability to enforce the copyright against infringers in court.

Copyrighted works (whether registered or unregistered) may display the © symbol.

How long is copyright protection good for?

Copyrights in the U.S. are generally valid for a term equal to the life of the author plus 70 years.

But if a company is the owner of the copyright, then the copyright is typically valid for 95 years after the date the work is first made public, or 120 years from the date when the work was created (whichever is shorter).

In summary: How patents differ from trademarks and copyrights

For easier reference, we’ve summarized the key differences between patents, trademarks, and copyrights in the table below.

 

Patent

Trademark

Copyright

What’s protected?

A patent-eligible invention that is novel, useful, and non-obvious

Any word, phrase, symbol, logo, or other devices that differentiates the source of goods or services from others

Original works of creative expression that have been fixed in a tangible medium, such as artistic output or technical work products

What rights are we afforded?

Right to exclude others from making, selling, using or importing a particular product or service

Right to prevent others from unfairly competing with you by using “confusingly similar” marks

Right to exclusively reproduce, publish, perform, display, or record the creative work, and also to create derivative works from the original

Do I have to register in order to gain this protection?

Yes; you must file a patent application

Registration is not required, but it offers you added legal benefits

Registration is not required, but it offers you added legal benefits

Who do I register with?

USPTO

USPTO

U.S. Copyright Office

Do I need to renew my registration periodically?

For the patent to remain in force for the full 20-year period, maintenance fees are due after 3.5, 7.5, and 11.5 years

Every 10 years

No

How long is the term of protection?

20 years

As long as the mark is being used in commerce

Author’s life plus 70 years; but if owned by a company, then 95 years after the date the work is first made public

 

Which source of IP protection is right for my business?

Each type of protection is distinct. Often, a single product is covered by many forms of IP protection.

In other words, your product might contain patentable features, creative expressions that can be copyrighted, and trademarks of the company that produced it.

The following examples illustrate how this works:

  • Software: You can patent its functionality, trademark the name or logo of the company producing the software, and copyright the code itself.
  • Company logo: You can trademark the logo itself (as it indicates the source of the company’s products and services), and copyright the creative and artistic aspects of the logo.
  • Laptop: You can patent the computer technology itself, trademark the brand that’s producing the laptop, and copyright the code for the laptop’s operating system.

For technology companies, particularly early-stage startups, patent protection is usually the most important, as it prevents your competitors from exploiting similar technology.

But when you’re close to having a product on the market, you will definitely want to think about seeking copyright and trademark protections in order to differentiate your brand.

For example, startups might want to consider registering copyrights in their website or marketing materials. It’s also a good idea to do a trademark clearance search before you invest too much in the name of a particular product or service.

Should patent protection be part of our IP strategy?

Understanding the differences between various types of IP protection can help you craft an appropriate strategy to ensure your business maintains a competitive edge in the long run.

Our free checklist will help you to determine if you’re really ready to begin pursuing patent protection for your invention. Download it now!

Free patent protection checklist download

 

POSTED IN: All Posts, Intellectual Property

Michael Henry

Michael Henry is a principal and the founding member of Henry Patent Law Firm PLLC. Michael specializes in creating comprehensive, growth-oriented IP strategies for early-stage companies who are developing emerging technologies.

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